If members of Parliament are accused of dishonesty in relation to their expenses claims, should they face prosecution in front of a jury in an ordinary court? The Crown Prosecution Service say they should. The defendants – three former Labour MPs, and a Tory peer – say that they benefit from Parliamentary privilege and should not. They deny the charges against them and assert that the allegations should be made through Parliament’s own procedures, not a criminal court. This appeal has reached the Supreme Court quickly. The defendants were charged in February and their case sent to Southwark Crown Court before Mr Justice Saunders – a High Court judge very experienced in criminal cases. In March, he rejected their claim of Parliamentary privilege. They mounted an interlocutory appeal on that point of law, and the Court of Appeal heard their claim in June. It agreed with Mr Justice Saunders. Less than four months later, a nine judge Supreme Court will determine whether the four men will be tried in Court or held to account by Parliament. The arguments concern the ambit of a statutory provision that is more than 300 years old, but still in force. Article 9 of the Bill of Rights 1688, states “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”  That principle which arose out of 17th century disputes between king and Parliament, is known as “parliamentary privilege” and it provides a person with absolute protection from prosecution. The privilege certainly covers defamatory or seditious comments in the course of Parliamentary debates. But does it stretch to the submission of expenses claim forms? The arguments in the appeal will turn on the following points:

  • What is meant by “proceedings in Parliament”? The Court of Appeal held this was restricted to “involvement in the legislative process” itself, and not wider. In their view, the submissions of expenses claims was not covered.
  • The interpretation of three 19th century decisions: Burdett v Abbot (1811) which, on one view, linked parliamentary privilege to the exercise of Parliament’s functions; Stockdale v Hansard (1884) which confined privilege to within the walls of the House, and to the performance of the “high and important duties” of members; and Bradlaugh v Gossett (1884), in which Stephen J. said “I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice. One of the leading authorities on the privilege of Parliament contains matter on the point and shows how careful Parliament has been to avoid even the appearance of countenancing such a doctrine”.
  • Whether more recent authorities suggest that the privilege must be interpreted narrowly as the Crown submits, or whether it may apply more broadly as the defendants claim?
  • Does the precise mechanism for claiming and paying expenses determine whether a claim is part of the proceedings of Parliament or not? The defendants contend that the submission of expenses is part of the expenses scheme which is itself part of the business of Parliament, and comes under its exclusive jurisdiction. Alternatively, they allege that claiming expenses is a core activity so closely associated with proceedings that it must fall within the privilege.

As the hearing continues, it is difficult not to be struck by a peculiar feature of the defendants’ position. While they seek to be judged by their fellow parliamentarians, a quick look around the Court might cause them pause for thought. The prosecutor is himself a member of Parliament, Lord Pannick QC. All nine justices hearing the current appeal, Lords Phillips, Hope and Rodger, Lady Hale and Lords Brown, Mance, Collins, Kerr and Clarke were themselves members of the House of Lords prior to the formation of the Supreme Court last year. So too Lord Judge LCJ and Lord Neuberger MR, who heard the appeal in the Court of Appeal. And as for the support of other Parliamentarians, Lord Judge noted the following:

… it is reasonable for us to anticipate that if the present proceedings were believed by Parliament itself to constitute a potential breach of privilege, that view would have been made known to the court … it is not without significance that on this issue of principle Parliament decided that it is not appropriate to intervene either in the context of the police investigation, or the decision of the Director of Public Prosecutions that there should be a prosecution, nor indeed in the context of the hearing before Saunders J before us.